STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 8, 1972

Jack T. Klauck
States Attorney, Pennington County
Rapid City, South Dakota 57701

OFFICIAL OPINION NO. 72-66

Sheriff's claim for reimbursement for delivering convicted felons to the penitentiary or committed mentally ill to the Yankton State Hospital, do not have to be approved by the states attorney. SDCL 7-12-18(9), 7-12-24, 7-12-22.

Dear Mr. Klauck:

You have requested my official opinion based upon the following factual situation:

The sheriff of Pennington County, in pursuance to court order has used his personal aircraft to transport convicted felons to the penitentiary in Sioux Falls, and mentally ill persons for committment to the Yankton State Hospital.

With this factual situation, you have submitted the following question:

In view of SDCL 7-12-21, is the approval of the states attorney necessary prerequisite before the sheriff may be paid his mileage expense for such trips?

We know that the sheriff may use an airplane to perform his official duties, and the general rate of expenses therefor is fixed by statute, SDCL 7-12-18(9). The statutes also provide that a sheriff, when delivering a convicted prisoner to the South Dakota State Penitentiary, received his expenses from state funds, under statutory restrictions. SDCL 7-12-22. Payment for transportation of persons to be institutionalized at the Yankton State Hospital is from county funds.

My predecessor, in an opinion reported in 1935-36 AGR 369, has held that states attorney approves vouchers of the sheriff only as such is directed by statute, and not otherwise, except in those instances when he is called upon in his capacity as the legal advisor of the county board to advise such board as to the legality of any claim filed against the county for payment from county funds.

While the statute under consideration in such opinion has been changed, I approve of the principle of law in regard to the occasions when the states attorney must approve the sheriff's claims.

The present statute requiring such approval of the sheriff's vouchers by the states attorney is SDCL 7-12-21, as last amended by Ch. 12 of the Session Laws of 1968, which provides as follows:

For all necessary expenses incurred as a result of official travel outside the county, not specifically provided for in Sec. 7-12-18, reimbursement shall be made by the board of county commissioners upon presentation of properly itemized vouchers approved by the states attorney.

As I have mentioned, SDCL 7-12-18(9) provides the sheriff's fees and expenses when travelling by airplane, and seeking reimbursement therefor from county funds. It would be patently ridiculous for me to hold that this applies only for travel within the county. This statutory provision for fees and expenses sets the proper rate for airplane travel by the sheriff on official business within and without the state.

Therefore, it is my opinion that the reimbursement claims of the sheriff for delivery of persons to be institutionalized at the Yankton State Hospital, is payable from county funds, without the approval of the states attorney.

It is my opinion that the same principle of law applies to the claims made against the state for delivery of convicted inmates to the South Dakota State Penitentiary. This reimbursement is made from the state, not the county treasury. Such reimbursement is provided by special statutes. The approval of the states attorney, when statutorily required, is to assist in protecting the county treasury from exorbitant claims. Such approval is not' required to protect payments from the state treasury. The state treasury is protected by the requirement that all such vouchers of the sheriff to seek reimbursement from the state treasury for delivering prisoners to the State Penitentiary before payment must be approved "by the executive director of the State Board of Charities and Corrections." (SDCL 7-12-22) (See also 1967-68 AGR 355) The states attorney’s approval of such vouchers is not a condition precedent to the payment of state funds of reimbursement of a sheriff for delivering convicted felons to the South Dakota State Penitentiary.

The answer to the question you have submitted is, NO.

Respectfully submitted,

Gordon Mydland
Attorney General